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A Discussion of Australian Environmental Law

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A Discussion of Australian Environmental Law LET OFF THE HOOK: WESTERN AUSTRALIAN DRUM LINING OF GREAT WHITE SHARKS A DISCUSSION OF AUSTRALIAN ENVIRONMENTAL LAW Hamish Reid A dissertation submitted in partial fulfilment of the requirements for the degree of Bachelor of Laws (with Honours) at the University of Otago, 2014. So basically if you cut off the head - if you wish - the top species, the top carnivores that control a lot of the processes lower down the food web, you’re removing a really important controlling agent and that could cause upheaval in the lower trophic levels – like the plants and the zooplankton. The ocean is basically the life support system of the planet. To change that support system in any major way is a risky thing, we know from the past that when oceans have changed that life on earth has changed. Dr Boris Worm, Marine Biologist, Dalhousie University But I did not make them because I had premonitions of impending eco-disaster. I did so because I know of no pleasure deeper than that which comes from contemplating the natural world and trying to understand it. - David Attenborough, Life on Air, 1997 LET OFF THE HOOK: WESTERN AUSTRALIAN DRUM LINING OF GREAT WHITE SHARKS A DISCUSSION OF AUSTRALIAN ENVIRONMENTAL LAW Abstract Carcharodon carcharias, the great white shark, is a threatened, migratory species. Its legal protection under Australian state and Commonwealth laws and, international law has done little to arrest the decline of its populations. Shark attacks remain rare. However in response to seven shark fatalities in the period 2010 - 2013 in Western Australian waters the state government controversially introduced a lethal trial drum line program the purpose of which was to target capture and dispose of the great white and other marine life. Before the drum line program could legally proceed domestic laws were by-passed with relative ease by way of exemptions to state and Commonwealth laws under which the great white is protected. This dissertation considers the failure of those laws in both the domestic and international setting. It also examines and opposes imminent and significant reform to Commonwealth law concluding that the environment, with reference to the Western Australian drum line program, requires more and not less rigorous legal protection. i Acknowledgments To my supervisor, Nicola Wheen, for your invaluable guidance and experience. To my family and friends, especially my mum, Joy. ii Abbreviations AAT Administrative Appeals Tribunal ACF Australian Conservation Foundation ADJR Administrative Decisions (Judicial Review) Act 1977 (Cth) ANEDO Australian Network of Environmental Defender’s Offices BCA Business Council of Australia CBD Convention on Biological Diversity 1992 CMS Convention on the Conservation of Migratory Species of Wild Animals 1983 (Bonn Convention) COAG Council of Australian Governments DoF Department of Fisheries, Western Australia EP Act Environment Protection Act 1986 (WA) EPA The Environmental Protection Authority (WA) EPBC Act Environment Protection and Biodiversity Conservation Act 1999 (Cth) ESD Ecologically Sustainable Development FRMA Fish Resources Management Act 1994 (WA) ICJ International Court of Justice IGAE Intergovernmental Agreement on the Environment IUCN International Union for Conservation of Nature MNES Matters of National Environmental Significance. PER Public Environmental Review UNTS United Nations Treaty Collection iii Table of Contents Abstract ....................................................................................................................................... i Acknowledgments ...................................................................................................................... ii Abbreviations ............................................................................................................................ iii Introduction ................................................................................................................................ 1 Chapter I: The Government of Western Australia Misunderstands a Fish ................................ 3 Chapter II: Australian Environmental Laws .............................................................................. 7 A: The Legal Framework ....................................................................................................... 7 B: The Environment Protection and Biodiversity Conservation Act 1999 (Cth) .................. 9 1: Commonwealth Responsibilities ............................................................................... 9 2: The Objects of the Act ............................................................................................. 10 3: Guiding Principles of the Act .................................................................................. 10 4: Assessment and Approval of Proposals under the Act ............................................ 11 (a) Referral of proposal and controlled action determination ......................... 12 (b) Assessment of controlled actions ............................................................... 12 (c) Approval of proposal ................................................................................. 13 5: Exemptions and Legal Challenges under the Act .................................................... 13 Chapter III: Drum Lines Awful under Australian Environmental Laws ................................ 15 A: State Law: The Great White – Totally and Wholly Protected ........................................ 15 B: Sea Shepherd Seeks Judicial Review .............................................................................. 16 C: Commonwealth Law: The Great White – A Matter of National Environmental Significance .......................................................................................................................... 17 Chapter IV: The Minister’s Exemption – A Closer Examination ............................................ 19 A: Judicial Review ............................................................................................................... 19 B: First Potential Ground of Review – Improper Purpose ................................................... 20 C: Second Ground of Review - Considerations ................................................................... 22 1: Irrelevant Considerations ......................................................................................... 22 2: Relevant Considerations .......................................................................................... 23 D: Subsequent Events ........................................................................................................... 24 Chapter V: Drum Lines under International Law .................................................................... 25 A: The Convention on Biological Diversity 1992 ............................................................... 25 B: The Convention on the Conservation of Migratory Species of Wild Animals 1983 (Bonn Convention (Cth) .................................................................................................................. 26 1: Article III CMS – Prohibition on “taking” .............................................................. 27 iv (a) First exception: “scientific purposes” ........................................................ 28 (b) Second exception: “extraordinary circumstances” .................................... 28 2: Consequences for Contravention of CMS .............................................................. 30 Chapter VI: Reform for the EPBC Act .................................................................................... 31 A: EPBC Act Fails ............................................................................................................... 31 B: A Context for Reform ...................................................................................................... 31 C: A Reason for Failure: Discretionary Outcomes under the Act ........................................ 32 1: The Role of Politics in the Exercise of Discretion ................................................... 32 2: Discretion and the Guiding Principles of the Act .................................................... 34 3: Discretion and the Hawke Review ........................................................................... 34 4: The Limitations of Judicial Review ......................................................................... 35 5: A Case for Merits Reviews under the Act ............................................................... 35 D: The One-Stop Shop Reform ........................................................................................... 36 1: A Brief History of the One-Stop Shop ..................................................................... 36 2: Opposition to the One-Stop Shop ............................................................................ 37 (a) The influence of the Business Advisory Forum on reform ........................ 37 (b) Approval bilateral agreements will not improve efficiency ...................... 39 (c) The reform ignores the potential for conflicts of interests ......................... 40 (d) State assessment standards do not meet Commonwealth assessment standards .................................................................................................... 40 (e) Commonwealth must retain oversight of MNES ....................................... 41 3: The One-Stop Shop and Western Australian Drum Lines ......................................
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